The proceedings before the Court
(a) Ground 1
Ground 1, excluding those parts expressly abandoned by the applicant, reads as follows:
"The Tribunal's handling of certain documents produced under summons by the Office of the Correctional Services Commissioner, Department of Justice of Victoria constituted:
(a) a denial of procedural fairness to the applicant in connection with the decision;
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PARTICULARS
1.1 At some time prior to 26 August 1997 on the application of the respondent the Tribunal issued a summons returnable on 27 August 1997 for the production of documents relating to the applicant under section 40(1A) of the Administrative Appeals Tribunal Act 1975 to the Office of the Correctional Services Commissioner, Department of Justice of Victoria.
1.2 On the return of the summons on 27 August 1997, the applicant's representative was allowed to peruse the documents produced on the summons, except for 21 pages of the documents within the scope of the summons which the Office of the Correctional Services Commissioner did not produce at that time.
1.3 On 27 August 1997 the Tribunal, through an officer, informed the applicant's representative that the 21 pages referred to would be obtained by the Tribunal and that they would be dealt with at a later date.
1.4 The Tribunal did not, to the applicant's knowledge, make any further direction in relation to the 21 pages referred to.
1.5 Neither the applicant nor his representatives were shown the 21 pages referred to.
1.6 If the Tribunal had regard to the 21 pages referred to, in the circumstances the applicant was denied procedural fairness."
In order to understand the sequence of events which is said to give rise to the claim that the applicant was denied procedural fairness, it is necessary to refer to a number of documents which came into existence in August and September of 1997, some months before the Tribunal heard the application to review the decision to order deportation.
On 8 August 1997, a summons to produce documents was issued by the Tribunal, at the request of the respondent, and served upon the Office of Correctional Services. That summons required the production to the Tribunal of all files in that Office's possession "relating to the imprisonment" of the applicant. It was made returnable on 27 August 1997.
On 21 August 1997 a letter was written by Adam Levy, a Legal Officer attached to the Office of the Correctional Services Commissioner, and addressed to the Registrar of the Administrative Appeals Tribunal. That letter reads as follows:
"Subpoena to Produce
Enclosed please find documents tendered to the Tribunal in response to a summons to produce documents issued in relation to the above matter.
The subpoena (attached), issued on 8 August 1997, requested all prison files and documents in respect of Prisoner Slavko Percerep.
Enclosed is a copy of Prisoner Percerep's Individual Management Plan File (2 parts), and the original of the Department of Justice "Head Office" file.
Some documents have been removed from the latter file. These documents, totalling 21 pages, contain material that if released is almost certain to jeopardise the safety of prisoners (other than Prisoner Percerep) mentioned in the documents. Mr Russell Rigby, for the Department of Immigration and Multicultural Affairs, has indicated that he does not object to the removal of these documents.
Should the Tribunal have any concerns regarding the documents removed, please contact Ms Odette Bear, Assistant Manager, Sentence Management in this Office, on 9627 6610.
Signed, Adam Levy,
Legal Officer." (emphasis added)
On 26 August 1997 an internal minute was prepared by a person designated as an "Associate" who was attached to the Tribunal. That minute was handwritten, and signified that a message had been sent to both parties (Mr Rigby for the respondent, and Mr McQuillen for the applicant). The body of the file note reads as follows:
"Documents summonsed by R are in - R from Canberra & HSUM (hearing summons) listed for 9.30 tomorrow. R has no objection to A inspecting the docs tonight. Any objections can then be dealt with at the HSUM (hearing of the summons) tomorrow, if any. If none, R can inspect at leisure - docs very voluminous. Ok'd re protocol … in that no objection by respondent."
Also on 26 August 1997, a letter was sent by a Deputy Registrar of the Tribunal to the applicant, care of his solicitor at Victoria Legal Aid. Copies of that letter were sent to the respondent and to the Office of Correctional Services. The letter reads as follows:
"Dear Sir/Madam,
Re: Mr S Percerep & Minister for Immigration & Multicultural Affairs V97/539
I refer to the above matter and the issue of a summons to produce documents to:-
Commissioner, Office of the Correctional Services 6th Floor 452 Flinders Street, Melbourne Vic.
Documents arrived today 26th August 1997, by hand delivered relating to Mr S Percerep, excluding 21 pages.
Please accept this as receipt for the file.
Yours faithfully"
It was common ground before me that the twenty-one pages which had been excluded from the material provided to the Tribunal by the Office of Correctional Services pursuant to the summons, and to which reference was made in the correspondence set out above, were never at any stage seen by Mr Rigby, who represented the respondent, or by the legal representatives of the applicant. Neither Mr Rigby nor those legal representatives of the applicant were shown the letter of 21 August sent by Mr Levy to the Registrar of the Tribunal, ie the letter which provided an explanation by the Office of Correctional Services for withholding the twenty-one pages from production.
On 27 August 1997 another internal minute in handwritten form was prepared by the "Associate" on behalf of the Tribunal. That file note recorded a message from Ms O Bear (Correctional Services). The body of the text reads as follows:
"Rang Ms Bear re folio 26 where it is stated that 21 pages of documents have been retained by the Dept of Justice. Ms Bear will hand deliver the documents directed to Forrest Chambers and marked "highly confidential"."
This file note was written at 3.00 p.m. on the 27 August 1997, after the time stipulated for the return of the summons before the Tribunal at 9.30 that morning. There is nothing to indicate that the contents of this communication were passed on, either to Mr Rigby, or to the legal representatives of the applicant.
However, on 28 August 1997 a third internal minute, prepared by the same "Associate" records in a handwritten note:
"R rang to advise that Gail from the Dept of Immigration is coming to Registry to photocopy the flagged summonsed documents, and send them to him in a sealed envelope marked "confidential only to be opened by Mr R. Rigby". Registry so advised."
It is common ground between the parties that this file note refers not to the twenty-one pages, but rather to other documents which had been flagged within the larger bundle which were considered relevant. It was those other documents which were passed on to Mr Rigby.
Nothing of any consequence then appears to have occurred until 9 September 1997 when Deputy President Forrest made an order bearing that date, and in the following terms:
"Being satisfied that it is desirable to do so by reason of the confidential nature of the material, the Tribunal, pursuant to s 35(2)(c) of the Administrative Appeals Tribunal Act 1975 ("the Act") and until further order, prohibits the disclosure of the 21 pages of summonsed documents lodged on 27 August, 1997, by the Department of Justice in a sealed envelope and marked "Confidential", to any person whatsoever, other than the Presidential member of the Tribunal constituted to hear this matter."
On 10 September 1997 copies of that order were sent to the respondent and to the legal representatives of the applicant. The order was accompanied by a covering letter which was short, and to the point. That covering letter stated:
"Dear Sir/Madam,
Re: Mr Slavko Percerep & Minister of Immigration and Multicultural Affairs - V97/539
Please find enclosed an ORDER of the Tribunal dated 9 September 1997 in the above matter."
The covering letter was signed by a Deputy Registrar of the Tribunal.
The Tribunal heard the application to review the deportation decision on 10 and 11 November 1997. There appears to have been no mention throughout those two days of proceedings of the order of 9 September, or of the twenty-one pages which were the subject of that order. Deputy President Forrest delivered his reasons for decision on 28 November 1997. There is no mention, in those reasons, of the order of 9 September 1997, or of the twenty-one pages which were the subject of that order.
It appears that the order of 9 September 1997 together with the letter of 10 September 1997 were received by the solicitor responsible for handling the applicant's case. Regrettably that solicitor did not at that time read either the order or the letter. He swore an affidavit which was filed before me in which he acknowledged that the order and the covering letter had been received by Victoria Legal Aid, shortly after 10 September, it would seem, and had been placed in the applicant's file, but that those documents had not been read until some time in May 1998. Mr Gray of counsel, who appeared before the Tribunal on behalf of the applicant, and who also appeared before me, gave a similar assurance from the bar table that he had been unaware of the existence of the order and the covering letter until May 1998. No explanation was proffered by the applicant's solicitor as to how the existence of those documents in the applicant's file had been overlooked. It can be fairly concluded, however, that this oversight was the result of some laxity on the part of the solicitor. That conclusion was not disputed by Mr Gray.
When the matter was scheduled to commence before me, a subpoena which was directed to the Office of Correctional Services, was called on. The subpoena required the production to the Court of the twenty-one pages which had previously been withheld from the Tribunal in August 1997. The subpoena was answered by Mr Levy, who, it will be recalled was the author of the letter of 21 August 1997. He had made the original decision to withhold those pages from production for the reasons stated in that letter. Mr Levy informed the Court that the Office of Correctional Services could not produce the twenty-one pages sought by the subpoena. It was possible, but not certain, that those pages had been retrieved from the Tribunal. If those pages had been retrieved they may have been placed within the voluminous files concerning the applicant which the Office of Correctional Services had maintained, but that could not be ascertained with any certainty. In short, the twenty-one pages could not now be located, let alone identified, with any precision.
After Mr Levy explained his inability to comply with the subpoena, he was asked some questions by each of the parties. Having heard what he had to say, it was accepted by the parties that, as a matter of practical reality, it was now impossible to ascertain with any certainty the identity or the contents of the twenty-one pages in question. Both parties then invited me to proceed with the hearing of this application upon that basis. Neither party requested that I adjourn the matter to enable further enquiries to be made. No request was made to have Deputy President Forrest, or some member of the staff of the Tribunal, called to give evidence in order to see whether any further light could be thrown on the contents of the twenty-one pages. I assume for present purposes that it would have been open to either party to call such evidence had that party wished to do so.
It was this sequence of events, as set out in the documents described above which gives rise to the matters which are the subject of complaint in ground 1.
The letter of 26 August 1997 which was sent by the Deputy Registrar of the Tribunal to the legal representatives of the applicant, and to the respondent, would have conveyed to the reader no more than that twenty-one pages of material which might otherwise fall within the terms of the summons of 8 August 1997 had been excluded from the documents provided in answer to the summons by the Office of Correctional Services. It is now known by the applicant that those twenty-one pages were in fact provided to the Tribunal on 27 August 1997. It is also now known by the applicant that those pages were made the subject of the order of 9 September 1997. These matters were not known, however, during the course of the hearing before the Tribunal, because the applicant's solicitor had not read the correspondence addressed to him which concerned the applicant.
What is not resolved directly by the evidence before the Court is whether the Deputy President at any time prior to the hearing of the matter in November 1997 read, or even glanced at, the twenty-one pages which were the subject of his order of 9 September 1997. What is also unresolved by the evidence is whether, included within those twenty-one pages, there was material which was adverse, in any relevant respect, to the applicant. These are important questions of fact. They must be addressed before any consideration can be given to the applicant's contention that he was denied procedural fairness by reason of the "the Tribunal's handling" of the material in question.
It should be noted that particular 1.3 of the applicant's ground 1 asserts that "On 27 August 1997, the Tribunal, through an officer, informed the applicant's representative that the 21 pages referred to would be obtained by the Tribunal and that they would be dealt with at a later date". There was no evidence before the Court that the version of events set out in that particular describes correctly the events which occurred on 27 August 1997. The respondent sought to rely upon what is set out therein as, in effect, an admission against interest by the applicant. The effect of that admission was said to be that on that date, the applicant's legal representative was alerted by the Tribunal to the fact that the twenty-one pages referred to were to be provided to the Tribunal. It followed, so the respondent contended, that the applicant was put on notice that the matter of the twenty-one pages could be the subject of submissions by the applicant prior to, or during the hearing, if the applicant were minded to make such submissions.
I am not prepared to treat the matters set out in particular 1.3 of the notice of appeal as an admission against interest in this way. Even if I were minded to do so, however, and I found that an intimation of the type set out in that particular had been given to the applicant's representative on 27 August 1997, that finding would not meet the entirety of the case now advanced by the applicant before me.
The information which was critical, so far as the applicant was concerned, was that the twenty-one pages had been provided to the Tribunal, and may possibly have been read by the Deputy President prior to making the order of 9 September 1997. Had the applicant's solicitor read the covering letter of 10 September 1997, together with a copy of that order, the strength of the applicant's contention that he had been denied procedural fairness by reason of the Tribunal's handling of the twenty-one pages would have been considerably reduced. It is common ground, before me, however, and established by the evidence, that the applicant's legal representatives were not aware of the existence of the order until it was discovered by them when they perused his file in May 1998.
The applicant submitted that I should infer that the Deputy President read, or at least perused, the twenty-one pages at some time prior to making the order of 9 September 1997. There is no direct evidence that the Deputy President did any such thing. The applicant submitted, however, that it would be unlikely that an order pursuant to the provisions of s 35(2) of the AAT Act would be made without the material the subject of the order having been first inspected.
Section 35(2) provides as follows:
"Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order:
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(c) give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding."
The applicant invited me to conclude that the Deputy President could hardly have been satisfied in accordance with the terms of sub-s (2) that directions as to confidentiality should be made in relation to the twenty-one pages without having first examined those documents for himself. The applicant contended further that it should not be assumed that the Deputy President would simply "rubber stamp" the views of Mr Levy, (as expressed in his letter of 21 August 1997) and make an order of such a serious nature without satisfying himself independently that there was a proper basis for Mr Levy's professed concerns.
The respondent, on the other hand, submitted that I should not engage in speculation, surmise, or conjecture as to whether the Deputy President had indeed read, or perused, the twenty-one pages before making the order of 9 September 1997. The respondent submitted further that it was likely that this order was made without inspecting the documents in question because they had been provided to the Tribunal by the Office of Correctional Services under conditions of strict confidentiality, and in a sealed envelope. The purpose of the order was likely, therefore, to have been merely to ensure the security of those documents pending the hearing of the application for review.
The respondent also submitted that it was unlikely that the Deputy President would have read documents, prior to the hearing and determination of the application to review, which were produced to the Tribunal pursuant to a summons addressed to a third party. The respondent submitted, by analogy, that no judge would be likely to inspect material produced to a court pursuant to a subpoena directed to a third party without one or other of the parties to the case having expressly invited him to do so.
The respondent submitted that even if the Deputy President had read or perused the documents for the purpose of satisfying himself that an order under s 35(2) of the AAT Act should be made, this would have occurred at least two months prior to the hearing of the application before the Tribunal. It was scarcely likely that the Deputy President would have any recollection of the contents of those documents by the time he came to prepare his reasons for decision. Moreover, had the Deputy President read, or perused the twenty-one pages, the strong probability was that he would have drawn that fact to the attention of the parties during the course of the hearing. He would then, in all likelihood, have invited them to make any submissions they considered appropriate concerning that material. These submissions might include an application, by counsel, upon appropriate undertakings as to confidentiality, to be permitted to inspect those documents. The respondent contended that the Deputy President's failure to mention the order of 9 September 1997, or the twenty-one pages, during the two days of the proceedings before him, or in his reasons for decision, supported the conclusion that the material had been neither read nor perused. Alternatively, if it had, it had been forgotten. Certainly, the respondent submitted, there was nothing to suggest that whatever might have been contained within the twenty-one pages had in any way influenced the Tribunal in arriving at its ultimate decision.
I am, of course, conscious of the care which must be taken to avoid speculation and conjecture, and the need to ensure that findings of fact are made only upon the basis of evidence properly before the Court. There are many instances of Courts having cautioned against such speculation and conjecture in areas as diverse as quantification of damages - The Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 83; assessing the likelihood by poll results that a jury had been made aware of an accused's previous conviction for a similar offence - The Queen v Glennon (1992) 173 CLR 592 at 602; and more recently, determining refugee status in immigration matters - Minister for Immigration and Ethnic Affairs v Guo (1997) 71 ALJR 743. There is no reason, however, why a Court should not be prepared to find facts upon the basis of inferences which may be drawn from primary facts which are found to have been proved - see Holloway v McFeeters (1956) 94 CLR 470; Trade Practices Commission v Allied Mills Industries Pty Ltd (1981) 60 FLR 1 at 17 per Sheppard J.
It is, no doubt, rare for the Court when hearing an application in the nature of an appeal pursuant to s 44 of the AAT Act to receive evidence which was not before the Tribunal. In Servos v Repatriation Commission (1995) 56 FCR 377 at 385 Spender J expressed the view that the jurisdiction of the Federal Court pursuant to s 44 of the AAT Act does not permit the reception of further evidence which was not before the Tribunal, a proposition which is generally unassailable. The very limited circumstances in which such evidence will be received must, however, include those cases where it is contended that the applicant has been denied procedural fairness before the Tribunal, and evidence is required to make good that claim.
A contention of that type seems to me to "raise a question of law" within the meaning of s 44 of that Act. An appeal to the Supreme Court of Victoria on a question of law from the Magistrates' Court pursuant to either s 92 or s 109 of the Magistrates' Court Act 1989 (Vic) may encompass matters which might otherwise fall within the ambit of judicial review pursuant to O 56 of the Rules of the Supreme Court - Stefanovski v Murphy [1996] 2 VR 442 at 451. A contention that an inferior Court has demonstrated bias against a party has been held to raise a "question of law" for the purpose of grounding a statutory right of appeal - Victorian WorkCare Authority v Hillgrove (unreported, McDonald J, Supreme Court of Victoria, 29 August 1994). I can see no reason why an "appeal" under s 44, which is itself a misnomer since the Court is exercising original rather than appellate jurisdiction when that section is invoked, should not encompass a claim of denial of procedural fairness. A claim of that type is quite different from an attempt to adduce fresh evidence merely in order to demonstrate an error of fact - Waterford v Commonwealth (1987) 163 CLR 54 at 77-8.
Moreover, in Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 it was held that an application brought under the Administrative Decisions (Judicial Review) Act 1977 to review a decision of the Tribunal was misconceived, and s 44 of the AAT Act was the appropriate avenue of appeal. Davies J, at 484 observed:
"The words "question of law" in s 44 encompass matters concerning not only the interpretation of a federal enactment or the enunciation of the principle of the common law or equity, but also the breach of any duty which the Tribunal was bound by law to perform and the failure of which to perform may lead to the setting aside of the decision. The words "question of law" encompass grounds enunciated in s 5 of the ADJR Act such as the failure to take into account a material consideration … and the failure to provide natural justice" (emphasis added).
Cf. David Jones Finance & Investments Pty Ltd v Commissioner of Taxation (1991) 28 FCR 484.
The grounds of judicial review of decisions made by the Tribunal arising out of the operation of s 200 of the Migration Act are not subject to the limiting provisions of Part 8 of that Act. Section 476(2) (which restricts the grounds upon which the Court may be asked to review decisions of the Immigration Review Tribunal and the Refugee Review Tribunal) has no application therefore to a deportation decision of the type presently under review. The problem considered by the Full Court in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 does not arise in the present case.
I accept the applicant's contention that I should infer that the Deputy President read, or at least perused, the twenty-one pages before making the order of 9 September 1997. I find it difficult to accept that the Deputy President, of his own initiative, and without prior consultation with the parties, would have made an order in the terms which he did on that date merely on the basis of what Mr Levy had stated in his letter of 21 August 1997. Such orders should not be made lightly. It should not be thought that such an order would be made solely on the basis of what was contained in that letter. No claim for public interest immunity would be upheld on such scanty material, falling short even of identifying with precision the nature of the public interest which is said to require protection. I think the likelihood is that, at some stage after 26 August 1997, when the documents were received by the Tribunal, the Deputy President examined them, and satisfied himself that "by reason of the confidential nature of the material" contained in those documents, they should be accorded the special protection of an order under s 35(2) of the AAT Act.
I am fortified in this view by the fact that the Tribunal, unlike a court, is expressly permitted to inform itself on any matter in such manner as it thinks appropriate - s 33(1)(c) of the AAT Act. I appreciate that a provision of this type is not a licence to a Tribunal to act upon material that is not disclosed to the parties - R v Metropolitan Fair Rents Board; ex parte Canestra [1961] VR 89 at 91. It does, however, make it more probable that an individual member might examine documents of the type lodged with the Tribunal in this case, prior to ordering their suppression.
I an conscious of the fact that this matter could perhaps have been clarified had either of the parties sought to call the Deputy President to give evidence before me. See generally Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523 at 550; Montague v Ah Shen [1907] VLR 458; and Parker v Churchill (1985) 9 FCR 316 at 325. There are no doubt many good reasons why neither party sought to do so. That leaves me, however, in the position of having to make an important finding of fact based upon inference alone. I am prepared, for the reasons set out above, to draw that inference in favour of the applicant.
The applicant also contends that I should conclude that contained within the twenty-one pages there was material likely to have been adverse, in relevant respects, to the applicant.
The primary facts from which I am asked to draw this inference are as follows. In Mr Levy's letter of 21 August 1997, it was asserted that the twenty-one pages "contain material that if released is almost certain to jeopardise the safety of prisoners (other than the Prisoner Percerep) mentioned in the documents". If that description was accurate (and no argument was advanced by the respondent to suggest that it was not) the implication is that, contained within the twenty-one pages is what may fairly be regarded as material which would tend to identify persons who were informers within the prison system. They might, of course, be informers against the applicant, or against other prisoners.
It is not without significance that the twenty-one pages were produced to the Tribunal at the behest of the respondent. Those pages were part of the files which related to the applicant's conduct while a prisoner, and to his progress through the prison system. Also contained within those files, but not excluded at the instigation of Mr Levy, were many documents which contained material which, in some respects, was plainly adverse to the applicant. In particular, I refer to a report dated 31 January 1997 prepared by Mr Shane Kelly, Assistant Manager of Sentence Management of the Office of Correctional Services, which stated:
"It would seem Percerep made a significant change to his lifestyle after completing the Drug Treatment Unit. Given his last nine years in Prison have been marred with constant incidents, Percerep has remained incident free (not including the unsubstantiated incident in 'D' Division) for approximately the last twelve months which is quite an achievement in its self." (emphasis added)
The Tribunal referred to Mr Kelly's report in its reasons for decision, noting as follows:
"The incident in D Division referred to by Mr Kelly was an allegation that, when the applicant was returned to Pentridge Prison in February 1996 for medical reasons he approached a prison officer to traffic in drugs.
There was a veiled suggested proffered as a possible explanation for a recent prison report of alleged subversive activities involving the applicant at Bendigo Prison and of the incident referred to by Mr Kelly, that some prison officers had a grudge against him. The incidents referred to have apparently not been substantiated, and in the circumstances I do not take them into account as matters adverse to the applicant."
The material obtained from the Office of Correctional Services which was tendered by the applicant before the Tribunal also included a minute dated 30 March 1996, prepared by Ms Bear. She noted:
"Percerep has now been accommodated in separation unit accommodation for some twenty months, following beliefs that he was conspiring to introduce heroin into Pentridge and indeed there existed the opinion that this prisoner was the most likely "major player" in the movement of drugs in Pentridge.
The prisoner's history is certainly well documented and you would very well recall that he has accrued a notorious history of disruptive and violent activities in prison custody; of particular concern during previous years have been his suspected involvement in a number of "fire lighting" incidents, alleged "standovers"/assaults and clearly his apparent overwhelming desire to obtain drugs over many years. His prior history suggests that he has the potential to be a danger to both staff and prisoners when he becomes active in his desire to obtain drugs, and certainly his similarly volatile history is acknowledged." (emphasis added)
Other documents produced by the Office of Correctional Services included a prisoner's application form in which the applicant himself noted that he had spent lengthy spells in maximum security during his term of imprisonment and had been involved with drugs at various times in prison. There was also reference to his behaviour having "improved greatly", after negative experience with prison in the past, and other like references.
Moreover, Mr Kelly's report (to which I referred earlier) described an incident where the applicant had walked into the Chief Prison Officer's office, produced a knife, and stabbed himself in the stomach. Mr Kelly went on to say:
"Between the years 1988 to 1995 Percerep has accumulated some 43 incidents as a result of his inappropriate behaviour, this has also resulted in Percerep spending approximately 34 months in management units between 1986 and 1990. … Percerep was returned to 'D' Division in February 96 for medical reasons, during this time it was alleged that Percerep approached a Prison Officer and attempted to coerce the Officer to traffic in drugs, reports were written but to date no further action has been taken except for transferring Percerep to 'B' Division."
An Addendum Sentence Management Unit report of 29 January 1997 referred to an incident leading to the applicant being returned to D Division Pentridge from Loddon Prison on 13 December 1996. The report observes:
"The relocation followed an incident on 8 December 1996 when a female intending to visit this prisoner was found to be in possession of a quantity of white powder, thought to be narcotics, and a modified (i.e. "cut down") syringe."
No charges followed this matter. The police documents relating to the investigation into this incident were before the Tribunal.
In short, I am satisfied that it is likely that the twenty-one pages which cannot now be located contained at least some material which was, in relevant respects, adverse to the applicant. As I indicated earlier, I am also satisfied that the likelihood is that those twenty-one pages were read, or at least perused, by the Deputy President prior to making the order of 9 September 1997. It is on the basis of these findings of fact that I proceed to consider the relevant legal principles which govern this matter.
The Tribunal made no reference to the twenty-one pages in the course of the two day proceeding before it. Nor did it refer to that material in its reasons for decision.
Counsel for the applicant submitted that the Tribunal's silence in relation to the twenty-one pages should lead the Court to conclude that the Tribunal may have been influenced by the material contained therein. This submission was based in part, upon the fact that the Deputy President had stated in terms that he had not taken into account other material which was before him, having heard argument by counsel for the applicant as to why he should follow that course. The failure by the Tribunal to raise the twenty-one pages specifically with the parties during the course of the hearing meant, so it was contended, that the applicant had been denied the opportunity to be heard in relation to their contents. Had the opportunity presented itself, the applicant could have sought access to that material (under appropriate safeguards eg such access being limited to his counsel, upon appropriate undertakings). Alternatively, the applicant could have invited the Tribunal to ignore the twenty-one pages entirely. He would then have had the reassurance of a statement by the Tribunal, in its reasons for decision, that the material had not, in any way, been taken into account.
Counsel for the respondent submitted that the Tribunal was constituted by an experienced Deputy President. He submitted that even if the Deputy President had read the twenty-one pages prior to making the order of 9 September 1997 it should not be assumed that he would do anything other than disregard entirely whatever was contained in those pages without giving the applicant an opportunity to be heard in relation to them. He contended that the Tribunal had done all that could reasonably be expected of it to accord procedural fairness to the applicant. By a letter dated 10 September 1997, the Tribunal had informed the applicant's solicitor expressly, and in terms, of the fact that the twenty-one pages were considered to contain material of such a confidential nature that they warranted the granting of an order under s 35(2) of the AAT Act. The fact that the applicant's solicitor had not read the correspondence which had been sent to him should not, in any way, be permitted to impugn the fairness of the processes followed by the Tribunal.
Counsel for the respondent also contended that the applicant had waived any rights to be heard in relation to the twenty-one pages by not seeking access to that material during the course of the proceedings before the Tribunal, or at least by not asking the Tribunal to disregard it entirely. He submitted that the Court should conclude from the manner in which the Deputy President had dealt with other material which contained unsubstantiated allegations adverse to the applicant, (namely the allegations concerning the D Division incident) that he must also have put to one side any adverse comments, or any unsubstantiated allegations, which may have been contained within the twenty-one pages. He submitted again that the Court should not speculate about the contents of those missing pages which could not be assumed to contain material adverse to the applicant. The applicant had been given, so he contended, a fair hearing, and a reasonable opportunity to meet all relevant matters raised against him.
There is considerable force in a number of the respondent's submissions. In the end, however, I have come to the view that the applicant's submissions on this point should be accepted.
The starting point in any legal analysis of the issues which are raised in this first ground of appeal is the judgment of the High Court in Kioa v West (1985) 159 CLR 550. The case involved a challenge to deportation orders made against two Tongan citizens. One of the issues which fell to be determined was whether the Minister's delegate had given the appellants a fair opportunity to answer prejudicial statements affecting them. The appellants contended that they had been denied an opportunity to respond to two particular statements contained in a submission made to the delegate. Those statements took the form of comments by Departmental officers on the material put before the delegate on behalf of the appellants. One of the statements referred somewhat disparagingly to Mr Kioa's "active involvement with other persons who are seeking to circumvent Australia's immigration laws".
The High Court, by majority, held that the appellants had been denied procedural fairness because they had not been permitted to deal with matters prejudicial to them that had been put to the Minister's delegate. The principal judgment among those justices who were in the majority was that of Brennan J, as his Honour then was. His Honour observed at 628:
"However, there was one allegation - that contained in par. 22 of the Department's submission - which was damaging to the prospects of Mr and Mrs Kioa being allowed to stay in Australia. That information was never put to Mr and Mrs. Kioa for their comments. Evidently the delegate did not rely on this allegation in making his decision, for his statement of the reasons for his decision provided under s 13 of the AD(JR) Act did not refer to it. That statement should be taken to be a true and complete statement of the delegate's reasons unless there is evidence to the contrary: see per Stephen J in R v MacKellar; ex parte Ratu (1977) 137 CLR 461 at 474. Although it is right to conclude that the allegation in par. 22 formed no part of the delegate's reasons, it was contained in the material before him which he proposed to consider in coming to a decision.
A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise: Kanda v Government of Malaya [1962] AC 322 at 337; Ridge v Baldwin [1964] AC 40 at pp. 113-114 per Lord Morris; De Verteuil v Knaggs [1918] AC 557 at 560-561. The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision of which are of little significance to the decision which is to be made. Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed …
Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account. The allegation in par. 22 was apparently credible, relevant and damaging. The failure to give Mr Kioa an opportunity to deal with it before making an order that Mr and Mrs Kioa be deported left a risk of prejudice which ought to have been removed. There was nothing in the circumstances of the case - neither in the administrative framework created by the Act nor in any need for secrecy or speed in making the decision - which would have made it unreasonable to have given Mr and Mrs Kioa that opportunity. The failure to give Mr Kioa that opportunity amounts to a non-observance of the principles of natural justice. The result is that the condition governing the power to make the deportation orders was not satisfied and the orders must be set aside. If the Minister chooses to do so, a fresh decision may be made. There is nothing in these reasons which affects the merits of the decision made or of any decision which may be made in the future."
The effect of paragraph 22 of the department's submission was dealt with in similar terms by Mason J (as his Honour then was) at 588, and by Deane J at 634. It is significant that the justices in the majority did not rest their conclusion upon the basis that the Tribunal had acted upon the adverse comment contained within paragraph 22. Their Honours relied rather upon the need, as a matter of principle, to ensure that there was a proper opportunity to controvert any material that was apparently credible which was, in fact, before the decision-maker.
The Chief Justice, Sir Harry Gibbs, dissented. His Honour observed at 569 that the mere fact that the Minister or the delegate had received material which the appellants wished to put before him did not require that they be permitted to see and comment on the department's adverse comments on that material. His Honour noted that the statement of reasons given by the delegate had made no reference to the matters stated in paragraph 22 of the submission. No attempt had been made to put before the Court evidence that the delegate had in fact considered matters other than those he mentioned in his reasons. It should therefore be accepted that the matters referred to in paragraph 22 did not affect the delegate's decision (referring to Ratu (1977) 137 CLR 461 at 474 per Stephen J).
Ratu was, of course, also cited with approval by Brennan J at 628. However, unlike Gibbs CJ, his Honour did not consider the reasoning in that case to operate against the interests of Mr and Mrs Kioa.
Support for the approach authoritatively laid down by the majority in Kioa may be found in Kanda v Government of Malaya [1962] AC 322, to which reference was made by Gibbs CJ in Kioa at 569, and by Brennan J at 628. In Kanda an officer conducting disciplinary proceedings had read a report which contained allegations of serious misconduct against the person accused in the proceedings. The accused had not had any opportunity to correct, or contradict, the report. The courts in Malaya (as it then was) had concluded that the question was whether there was any real likelihood of bias. The Judicial Committee of the Privy Council held, however that the complaint of the accused was not that the Tribunal was biased, but that he had not been given a reasonable opportunity to be heard. Lord Denning said at 337:
"If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them …It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations for one side behind the back of the other. The court will not inquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so. The court will not go into the likelihood of prejudice. The risk of it is enough." (emphasis added)
Gibbs CJ in Kioa concluded that it could not be said that there was a risk of prejudice once it was accepted that the comments in paragraph 22 did not in fact form one of the reasons for the delegate's decision. Brennan J did not, however, consider the principles in Ratu to be an answer to the contention that there had been a failure to accord procedural fairness. Wilson J at 603 and Deane J at 633 approached this issue in the same way as did Brennan J. That approach is one which I consider I am bound to follow.
Further support for the applicant's position is to be found in Claro v Minister for Immigration, Local Government and Ethnic Affairs (1993) 46 FCR 494. In that case, Burchett J stated at 505:
"I turn to the issue of natural justice. The matters not disclosed to Mr Claro, which had been alleged against him by his wife, were relevant to the question whether there had been a complete and permanent end to the marital relationship. In so far as there were allegations of "pestering", unwanted entry into Mrs Claro's home and bed, and the leaving of a mess in her bathroom, the allegations were also plainly harmful to the applicant on the issue of discretion. …
But the argument for the Minister was that none of the matters not disclosed to Mr Claro played any part in the reasons that grounded the decision. This is always a difficult argument. Particularly where a discretion is involved, if a harmful allegation is concealed from a party, how can there be confidence that it in no way influenced an adverse decision?"
His Honour then quoted with approval the remarks of Brennan J in Kioa (supra) at 629, set out above.
In Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103 Merkel J considered the principles laid down in Kioa in the context of a case where it was contended that non-disclosure to the applicant of information received by a departmental officer in relation to certain enquiries made by Embassy officials in Armenia constituted a breach of the rules of natural justice. His Honour concluded that the information in question, which was adverse to the applicant, was critical to the decision which was ultimately taken to refuse the applicant a protection visa on humanitarian grounds.
Merkel J observed at 123:
"Was the failure to bring that information to the applicant's attention a breach of the rules of natural justice? …
An applicant is entitled to know the case against him or her and be given the opportunity of replying to it.
But procedural fairness does not necessarily require disclosure of all of the details of the case against the applicant; it is sufficient if the substance or the gravamen of the information intended to be relied upon is brought to his or her attention: …
But, as the decision in Kioa itself demonstrates, the disclosure is not limited to the matters intended by the decision-maker to be relied upon. Quite often the decision-maker will only determine those matters in the course of preparing or making a decision.
Rather, at least in a case such as the present, the issue is whether the applicant has had brought to his attention "the critical issue or factor on which the administrative decision is likely to turn" (Kioa, at CLR 587 per Mason J) or "relevant matters adverse to" the interests of the applicant which are "credible, relevant and significant to the decision to be made" (Kioa, at CLR 629 per Brennan J) or "the matters raised against them" (Kioa, at CLR 634 per Deane J).
Where the information in question is prejudicial to the applicant or to the case he or she is putting it is not necessary to show that it did work to the prejudice of the applicant; it is sufficient to show that it was open to it to do so: see Kanda v Government of Malaya [1962] AC 322 at 337-8."
His Honour concluded that the applicant had, in the circumstances, been denied procedural fairness.
Counsel for the respondent in the present case contended that the observations of the majority in Kioa are inapplicable to the situation which presents itself in the present case. The contents of the twenty-one pages were confidential, unknown, and cannot therefore be said to be "apparently credible". These are powerful considerations. They do not, however, alter the operation or effect of the broad statement of principle which was endorsed by the majority of the High Court.
The fact that the contents of the twenty-one pages were confidential did not necessarily mean that some intimation could not be given to the applicant of their general nature. This would have enabled submissions to be made concerning the material contained therein. Courts have, in some circumstances, deemed it appropriate to permit counsel to inspect documents which might be the subject of a claim for public interest immunity, upon the giving of appropriate undertakings, in order that submissions can be made concerning the contents of those documents - Alister v The Queen (1983) 154 CLR 404; Jackson v Wells (1985) 5 FCR 296.
The fact that the contents of the twenty-one pages are not now known is of no relevant consequence given that I am prepared to infer that they are likely to have contained material which was adverse, in relevant respects, to the applicant.
As regards the "apparent credibility" of the documents, it is true that there is a difficulty here. It is not easy to make any meaningful evaluation of those documents when their contents cannot now be ascertained. Nonetheless, the material contained within them was considered sufficiently "credible" to warrant being placed upon the applicant's Office of Correctional Services file. While some of the material may not have been "apparently credible", I am not prepared to say that none of what was contained in the twenty-one pages was capable of being so regarded.
It is, of course, theoretically possible that each and every matter adverse to the applicant within the twenty-one pages had been thoroughly investigated by the Department of Justice, and dismissed as being without foundation. It that were so, there might be a case for saying that there was no relevant prejudice to the applicant in that material. I do not believe that it would be consistent with the principles which underlie the reasoning of the majority in Kioa to approach the matter in that way. It would truly involve speculation and conjecture, and not inference. In circumstances where the effects of a deportation order upon the applicant are extremely serious, I am not prepared to approach the matter upon the basis of any such theoretical possibility.
There is a relative paucity of authority dealing with the question of waiver in relation to the operation of the rules of natural justice. There are cases where courts have held that failure to give due notice is immaterial if, in fact, the person affected has had a proper opportunity to be heard. These cases suggest that minor aspects of the rule may be impliedly waived. In other cases courts have refused discretionary relief where there has been breach of the requirements of natural justice. The relevant principles are set out in M Aronson and B Dyer, Judicial Review of Administrative Action (1996) at 576-578. None of the authorities referred to by the learned authors suggests that the applicant should be treated as having waived his right to be accorded procedural fairness because his solicitor, through an oversight, failed to read correspondence which had been addressed to him.
In cases involving matters which may be compensable in monetary terms, such an oversight by a legal representative may be treated as some form of waiver, or perhaps as disentitling the applicant as a matter of discretion to relief for denial of procedural fairness. The possibility that the applicant may have an effective remedy against his legal representative will provide some justification for that approach. It will be of little comfort to the applicant in the present proceedings, however, to be told that the deportation order made against him must stand because, through no fault of his own, but rather through the fault of his solicitor, important correspondence was not read and, as a result, no submissions were addressed to the Tribunal on what may have been an important issue.
Where a decision-maker has received material which is, or may be, adverse in a material respect to a party, it is not unreasonable to expect that the fact that this material had been received will be emphasised during the course of the hearing, and the party adversely affected invited to be heard in relation to it. If the material has been previously read, and sealed, because of its sensitive or confidential nature, the party who may be adversely affected by it should, in my view, be given an opportunity to be heard in relation to any such confidentiality orders. That opportunity should be given clearly, and unequivocally, or to put the matter another way, there must be "meaningful disclosure" - Moore v Guardianship and Administration Board [1990] VR 902 at 912 per Gobbo J. If the decision-maker has concluded that the material will, in any event, be disregarded that fact should, ordinarily, be communicated to the parties. Even if that is not done it may, in a given case, be appropriate for the decision-maker to state in his reasons for decision that certain documents which contained material of a confidential nature were received, and read, but disregarded when it came to making the final determination.
There can be no fixed rules in relation to these matters. For example, the fact that the decision-maker may have read unfavourable newspaper accounts, or seen adverse television reports, concerning the applicant would not ordinarily require anything specific to be done to inform the parties of that fact. Nor would it require that fact to be revealed in the reasons for decision. The existence of such adverse material will be generally known, and even if not known, Tribunals (as distinct perhaps from jurors) are assumed to be aware of the need to disregard material of that nature.
Documents such as those which were subpoenaed from the Office of Correctional Services seem to me to fall into a different category. They have an official status, and the risk of their influencing a person who reads them, whether consciously or subconsciously, is inherently greater. The Tribunal should have reminded the parties of the fact that these pages had been received and, as I have found, read by the Deputy President before being ordered to be sealed. The principles which I consider applicable are those same principles which led Gobbo J, in the Supreme Court of Victoria to quash a determination of the Guardianship and Administration Board in Moore (supra).
The Tribunal's obligation to bring this matter squarely to the attention of the parties during the course of the hearing was, in my opinion, greater by virtue of the fact that the Deputy President made the decision to make the confidentiality order without having heard first from the parties. That was a course which may well have been open to him, but, in my view, when adopted, imposed corresponding obligations to ensure that all matters concerning the relevant documents were properly aired. This the Deputy President did not do. The letter of 10 September 1997 was sent to the parties setting out the terms of the order made on the preceding day was not, in the circumstances, an adequate alternative. It was not "meaningful disclosure" of the fact that the Deputy President had received and read the material the subject of the order, and it was not calculated to induce the applicant to take the matter further, even if his solicitor had read that letter.
Though it cannot be said that the Tribunal took into account in a manner adverse to the applicant anything contained in the twenty-one pages, there is a risk that it may have done so, even subconsciously. The fact that the applicant was denied the opportunity to be heard in relation to that material leads me to conclude that he must succeed in his claim that he was denied procedural fairness.
The effect of my judgment will be that the decision under review will be set aside. The matter will be remitted to the Tribunal, differently constituted, to be reconsidered.
There were a number of other grounds of appeal which were fully argued before the Court. It is appropriate that I deal with them because they may well arise again when this matter is dealt with by the Tribunal.
(b) Ground 2
Ground 2 of the Notice of Appeal reads as follows:
"The deportation order affirmed by the Tribunal is invalid on grounds of uncertainty.
PARTICULARS
2.1 The deportation order refers to and relies upon convictions on 2 December 1985 and three counts of armed robbery committed on 26 July 1985.
2.2 The applicant was not convicted on 2 December 1985 and was not convicted of three counts of armed robbery committed on 26 July 1985."
There is, in my opinion, no substance in this ground. The material before the Tribunal demonstrates that the applicant was convicted on 29 November 1985 but sentenced on 2 December 1985. The misstatement concerning the date of conviction is of no consequence. Nor is the misstatement concerning the dates upon which the three counts of armed robbery were committed. The first of these was indeed 26 July 1985, but the other two were committed in August 1985. Such an error can scarcely be said to vitiate a deportation order which is otherwise valid.
There may be circumstances where a deportation order may be invalid on grounds of uncertainty. If, for example, it is impossible to tell what offences formed the basis of the delegate's decision to order deportation, the order might well be invalid. It would fail to show jurisdiction on its face. Assuming that such a requirement exists, it might thereby fail to satisfy the requirements for this particular exercise of statutory power - see generally Ousley v R (1997) 148 ALR 510 at 516-518, 535-538 and 553.
In this context the applicant relied upon a decision of the Tribunal in Re Thomason v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 795. There the applicant had been convicted on four counts of breaking and entering a dwelling house with intent to commit an indictable offence. He had been admitted to probation for a period of two years. In the following month, the applicant was convicted of further offences. Having breached the probation order, the applicant appeared again for sentencing on each of the four counts in respect of which the probation order had been made. On 9 July 1991 he was sentenced to twelve months' imprisonment on each count. A delegate of the Minister purported to order the deportation of the applicant pursuant to the provisions of the Migration Act. The "deportation order" referred to the applicant's conviction on 9 July 1991 "of the offence of breach of probation for which he was sentenced to one year's imprisonment and which offence he committed on 15 May 1991". The applicant sought review by the Tribunal of the decision to order his deportation. The Tribunal held that the "deportation order" was so clearly defective that no valid order had been made. It seems that the Tribunal recognised that there was no offence known to the law of breach of probation. It followed that the purported order was so uncertain in its terms that it could only be regarded as a nullity.
The deportation order in the present case is imperfectly drafted. However, in my view, it cannot be said to be invalid by reason of uncertainty. The confusion between the date upon which the applicant was convicted and the date upon which he was sentenced is, as I have indicated, of no consequence. Moreover, the three offences of armed robbery which form the basis of the order are correctly designated save that the first of them only was committed on 26 July 1985. It is obviously desirable that deportation orders be drafted with care and precision. This is not, however, a case in which such errors as appear in the document should be taken to vitiate it. I would reject ground 2.
(c) Ground 3
Ground 3 is in the following terms:
"The Tribunal erred in law in deciding that a Youth Training Centre was a "prison" within the meaning of section 204 of the Migration Act 1958. The Tribunal dealt with this contention in its reasons for decision. If time spent in a Young Training Centre is not time served in a prison, the applicant would, as at 26th July 1985, the date of the commission of the first offence of armed robbery, have acquired more than ten years permanent residence in Australia, and would be ineligible for deportation."
The Tribunal noted that s 204 of the Migration Act relevantly provides:
204. (1) Where a person has been convicted of any offence (other than an offence the conviction in respect of which was subsequently quashed) the period (if any) for which the person was confined in a prison for that offence shall be disregarded in determining, for the purposes of section 201 and subsection 202(1), the length of time that that person has been present in Australia as a permanent resident or as an exempt non-citizen or a special category visa holder.
…
(3) For the purposes of this section:
(a) a reference to a prison includes a reference to any custodial institution at which a person convicted of an offence may be required to serve the whole or a part of any sentence imposed upon him or her by reason of that conviction; and
(b) a reference to a period during which a person was confined in a prison includes a reference to a period:
(i) during which the person was an escapee from a prison; or
(ii) during which the person was undergoing a sentence of periodic detention in a prison."
Counsel for the applicant repeated the submission which he had made to the Tribunal below that, because pursuant to s 92 of the Community Welfare Services Act 1970 (Vic) (since subsumed under the Children and Young Persons Act 1989 (Vic) (s 249)) a Youth Training Centre may serve purposes for young persons in need of special supervision, adjustment or training in addition to Court imposed detention following conviction for crimes, it is not a "prison" for the purposes of the Act.
The Tribunal rejected this submission, correctly in my view. In determining the length of permanent residence in Australia, subs 204(3) of the Act provides that "a reference to a prison includes a reference to any custodial institution at which a person convicted of an offence may be required to serve the whole or part of any sentence imposed upon him by reason of that conviction". The applicant had, in 1978, been ordered to be detained in a Youth Training Centre following convictions for theft of motor cars, robbery and burglary. A Youth Training Centre is, in my view, a "custodial institution" within the meaning of that expression in subs 204(3). The Tribunal was correct in holding that the fact that a Youth Training Centre may serve purposes other than detention as punishment is no basis for holding that it is not a "custodial institution" for the purposes of subs 204(3). There is no substance in ground 3.
(d) Ground 3A
The applicant was given leave pursuant to O 53 r 3(3) of the Federal Court Rules to amend his grounds of appeal to raise a point not taken before the Tribunal in the present proceeding. Ground 3A of the Grounds of Appeal reads as follows:
"The Tribunal erred in law in applying section 204 [of the Migration Act] with retrospective effect."